In the latest development of the Italian Marines case, the Supreme Court of India ordered the Italian Ambassador, Daniele Mancini, not to leave the country. This order, which is supposed to be in effect until March 18, is probably to give the SCI time to decide whether it wants to prosecute Mancini for contempt of court because the two marines he had stood as guarantor for will not be returning to India to stand trial. It is not clear what else this restraining order implies, or how the order is to be implemented, but India’s foreign minister, Salman Khurshid, has rushed to say that his government will comply with the Supreme Court’s orders. Interestingly, the former secretary general of the Lok Sabha, Subhash Kashyap, has also been roped in to say that the SCI’s order is perfectly legal despite the Ambassador’s diplomatic immunity.
The last-minute face saving exercise mounted by both the Government of India and the Supreme Court is not only farcical but also deeply embarrassing and probably illegal. As everyone knows, the Vienna Convention on Diplomatic Relations of 1961 expressly prohibits the mistreatment of diplomats. Article 29 states clearly, “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention.” Furthermore, Article 31 provides, “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.” However, though the article extends “immunity from…civil and administrative jurisdiction,” it stipulates three exceptions: 1. an action involving immovable property in the host state the diplomat is not holding on behalf of his state; 2. if the diplomat is involved as an executor, administrator, heir, or legatee as a private person and not on behalf of his country; and 3. any professional or commercial activity in the host state by the diplomat in his personal capacity, outside his official functions. Furthermore, as Article 32 states, a diplomat cannot claim immunity in the case of a counterclaim against a claim he has initiated.
The Italian government’s refusal to send back the two marines for trial in India is an extraordinary step, quite unprecedented in relations between friendly countries. The Italian government is repudiating the affidavit it filed in the Supreme Court guaranteeing the return of the marines, making a mockery not only of the sanctity of its own legal commitment, but also of India’s judicial process.
What are India’s options at this point? New Delhi will have to declare Italian Ambassador Daniele Mancini persona non grata for lying while serving in an official capacity; it can scale back government business with Italy for a few years; India can exert pressure on Italy to return the marines through its European friends but it is unlikely to bear fruit
Responding to the issue raised by the Opposition in both Houses of Parliament, Manmohan Singh said that the country is agitated over Italy’s action which is ‘unacceptable’
The fishermen community says they are pained by the casual attitude of the government
Singh told the Left MPs that he will ask External Affairs Minister Salman Khurshid to take up the issue with Italy
BJP spokesperson Rajiv Pratap Rudy said that BJP will seek an explanation from the government as to why the Italian government is so “casual” about India
Massimiliano Lattore and Salvatore Girone were charged with homicide for killing two fishermen off the Kerala coast in February last year